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TMI Blog2016 (12) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2 read as: - "7.1. The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings. Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stages of issue of Show Cause Notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording his findings on the issue of suspension of CHA license, and for passing of an order by the Commissioner of Customs. Suitable changes have been made in the present time limit of forty five days for reply by CHA to the notice of suspension, sixty days time for representation against the report of AC/DC on the grounds not accepted by CHA, by reducing the time to thirty days in both the cases under the Regulations. 7.2. In cases where immediate suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the procedure prescribed under Regulation 22 since suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin 90 days from the date of submission of the Inquiry Report. TOTAL DURATION 270 DAYS or 9 MONTHS. In order to ascertain if such inordinate delays as in the instant case are exceptional or such delays are regular, Revenue was asked to submit data to ascertain if they are following time limits and if this case was an exception to the rule. Data was sought of such cases from the period when such time limits were introduced under the CBLR, 2013. Vide miscellaneous application No. C/MA(Ors)/93379/ 16, Revenue has submitted the said data consisting of 15 records. Revenue has also stated that for compiling the data they require time of 8 to 12 months. 2. Learned Counsel for the appellant argues that the time limit prescribed under the CBLR, 2013 are mandatory in nature as has been held by the following decisions of Hon'ble High Court : (i) In the case of Overseas Air Cargo Services - 2016 (340) ELT 119 (Del) (ii) Hon'ble High Court of Madras in the case of Saro International Freight System - CDJ-2015 MHC-7964. (iii) Hon'ble High Court of Delhi in the case of INDAIR Carrier Pvt. Ltd. - 2016 (337) ELT 41 (Del) Learned Counsel argued that in view of the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case in question, have to be examined, taking into consideration the gravity magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion." 3.2 Ld AR further relied on the decision of Hon'ble High Court of Kolkata in the case of Bose Enterprises &Another vs. Union of India in Writ petition No. 143 of 201 Ovide Order dated 15.03.2012. Ld AR also relied on the decision of Hon'ble High Court of Delhi in the case of Burleigh International - 2016 (333) ELT 9 (Del). Ld AR also relied on the decision of Hon'ble Apex Court in the case of Union of India & Others Vs. R.S. Saini - 1991 Supp (2) Supreme Court Cases 151. 4. We have gone through the rival submissions. We find that admittedly the time limits prescribed under the CBLR, 2013 have not been followed. The CBLR, 2013 prescribed the following time limits: - CHALR, 2004 CBLR, 2013 Purpose Specified Time Period 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Regulation 46(2), as stated in the said order, reads as follows: - "In case of an appeal against the order imposing any of the penalties specified in Regulation 39, the appellate authority shall consider - (a) Whether the procedure prescribed in these Regulations has been complied with, and if not, whether such non-compliance has resulted in failure of justice; (b) Whether the findings are justified; and (c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders........ xxxx xxxxxxxxxxx" It is seen that Hon'ble High Court had in that case considered delay as one of the contributing factor. It is seen that there is no time limit prescribed under regulation 46(2) (as reproduced in the said decision). In the instant case CBLR, 2013 specifically prescribed time limits under various regulations and therefore the case in hand is different from the facts in the case before the Hon'ble Apex Court in the case of Chairman, LIC (supra). Moreover the said decision was given in disciplinary proceedings of a corporation. In the instant case, the matter involves interpretation of CBLR, 2013 which are regulation passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f R.S. Saini (supra). In the said case, the Hon'ble Apex Court held that time limit prescribed by a memorandum of Government of India cannot be held to be mandatory. The said case is distinguishable for the reason that in the instant case, the time limit is not prescribed by Administrative order of the Ministry but by a statutory regulation issued under the authority of Customs Act, 1962.The instant case involves period when time limit have been prescribed by legislation under CBLR, 2013. 4.5 Learned Counsel for the appellant has cited a recent decision of Hon'ble High Court of Delhi in the case of Overseas Air Cargo (supra). In the said case, Hon'ble High Court of Delhi has followed the earlier decision of Hon'ble High Court of Delhi in the case of IndAir Carrier (supra) and held that the time limit prescribed under the CBLR, 2013 are mandatory in nature. In para 6 & 7 of the said decision, following has been observed: - 6. The time-limits in the CHALR, 2004 for issuance of the SCN to the CHA licence holder and completion of the inquiry within 90 days of issuance of such SCN are sacrosanct. The aforesaid time-limits were engrafted into Regulation 22 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word "shall" in Regulation 11 as "mandatory" and not "directory". Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term "shall" cannot be termed as "directory". It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 08.04.2010, amendments prescribing time period for initiating action and completing proceedings was made. The, same was given effect by notification dated 20.01.2014.Whereas, under the CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; M/ 86739/ 16/CB dated 22.03.2016), the Bench had sought data to ascertain if delays are regular or exceptional. The said data was not provided for a period of almost four months. The matter was heard on 23.11.2015, the Bench waited for four months for the data, however order pronounced on 22.03.2016. The order had to be passed without the benefit of the said data. in the said order, the following observation was made: - "8. During the arguments, the issue of required delays in following the various time limits set out in the CHALR was also taken up. For appreciation of facts and circumstances, the learned AR agreed to provide data of the case pending/ under investigation in the Customs House and if there are any delays. However, the said data has not been submitted till date." There is an obvious resistance to providing the data. This creates a suspicion. It is obvious that some Customs Brokers suffer on account of such delays and some get benefit on account of such delays. Some custom broker, who have not committed any serious fraud and who ought not to be punished, get out of work for long periods during which the proceeding are delayed. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Co., 11/025 25.11201 1 23.12.2011 21.1.2014 2.1.1.2014 21.1.2014 25.11.2014 12 OK cargo craft, 11/887 21.32011 31.32011 8.11.2011 8.1 1.2011 8.1 1.2011 Inquiry is still pending 13. SSS Sai Shipping Services Pvt. Ltd. 11/907 30.8.2012 13.9.2012 2.11.2012 2.11.2012 2.11.2012 18.10.2013 14. K.M. Commercial Services Pvt. Ltd. 11/907 30.8.2012 13.9.2012 2.11.2012 2.11.2012 2.11.2012 18.10.2013 15. RR Joshi Shipping & Forwarding Pvt. Ltd. 11/486 8.11.20111 2.12.2011 25.1.2012 25.1.2012 25.1.2012 11.12.2012 It is seen that inquiries initiated in 2010/2011 are still pending in 2016. There is absolutely no respect for the CBEC circulars or the CBLR 2013. This data appears to be just the tip of the iceberg as the revenue is seeking further time of 8 to 12 months just to compile the data of other such files regarding delay in processing. This indicates a very serious state of affairs. The interim order seeking data was issued on 15.7.2016 and the Miscellaneous Application has been filed on 23.9.2016. In a period of 67 days, they have provided data of 15 cases. There appears to be reluctan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o are not guilty suffer for long periods of time. In both the cases the justice is not delivered. 5.3 It was obvious that there is lack of supervision and effort to adhere to the time limit prescribed by law. This will assume serious implications especially in view of the fact that Courts have held time limit to be mandatory in nature. This data of 15 cases is only tip of the iceberg. By the miscellaneous application filed, the Revenue seeks the time of 8 to 12 months just to compile the data of such delays. Suffice to say in such a serious issue needs immediate attention of CBE&C and Chief Commissioner of Customs. As a result of such delay, a number of serious offenders will get the benefit and be left of the hook and go scot free, which is not the intent of law. Similarly, due to the delays, people who are not guilty will continue to suffer the suspension and revocation on account of delays by Revenue due to lack of responsibility. 6 Relying on the decision of Hon'ble High Court in the cases of Overseas Air Cargo Services (supra); Saro International Freight System (supra) and INDAIR Carrier Pvt. Ltd (supra), the appeal is allowed on limitation without goin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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